SACRAMENTO, CA – President Donald J. Trump for President, Inc., and Donald J. Trump, in his capacity as a private citizen, sued Alex Padilla (California Secretary of State (and Xavier Becerra) (California Attorney General).
The complaint, filed August 6, 2019, in the United States District Court Eastern District of California, states that California has violated or preempted the following: Count 1 – “Violation of Presidential Qualification Clause”; Count 2 – “Violation of Presidential Elector Clause”; Count 3 – “Violation of the First Amendment (Ballot Access)”; Count 4 – “Violation of the First Amendment (Retaliation); and Count 5 – “Preemption by Ethics in Government Act”.
Trump’s complaint argues that “Federal law sets important limitations on States’ ability to legislate in the arena of Federal Elections.” States cannot impose their own qualifications for federal office. This has been laid out in The Constitution in Article II, § 1, cl. 5. This specifies that, “No person except a natural born Citizen… shall be eligible to the Office of President; neither shall any person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States.” The Supreme Court has ruled that these are “the exclusive qualifications for federal office”. “States do not ‘possess the power to supplement the exclusive qualifications set forth in the text of the Constitution. A State’s laws violate the Qualification Clauses if they impose a ‘substantive qualification rendering a class of potential candidates ineligible for ballot position.”
In fact, states can only issue procedural regulations. “Under the First and Fourteenth Amendments, States cannot impose ballot access rules that infringe a candidate’s freedom of political association.” These rules or powers are limited to notices, registration, supervision and etc. In plain words, “States can regulate only ‘requirements as to procedure and safeguards which experience shows are necessary in order to enforce the fundamental right involved, ensuring that elections are ‘fair and honest’ and that ‘some sort of order, rather than chaos, is to accompany the democratic process.'”
The states do not have the power to pass laws that fall outside of these powers. “This is particularly true for Presidential elections where ‘a State’s enforcement of more stringent ballot access requirements … has an impact beyond its borders.”
However, if the regulations for elections does fall outside of these Qualifications Clauses, they must comply with the First Amendment. In order to help determine this, the Supreme Court has developed “a balancing test.” “This is a sliding scale test, where the more severe the burden, the more compelling the state’s interest must be, such that ‘a state may justify election regulations imposing a lesser burden by demonstrating the state has important regulatory interests.'”
States cannot create laws that will discriminate or retaliate against individuals for their politics or speech. “States likewise cannot impose ballot access rules to retaliate against political opponents. ‘Political belief and association constitute the core of these activities protected by the First Amendment,’ and the First Amendment ‘has its fullest and most urgent application to speech uttered during a campaign for political office.'” “Official reprisal for protected speech offends the Constitution.”
If a law was enacted to discriminate or retaliate against a person for their politics, then it also violates the First Amendment. “Laws based on partisan discrimination or retaliation ‘press’ individuals ‘to conform their beliefs and associations to some state-selected orthodoxy.'” “To determine whether an impermissible purpose exists, courts first look at the ‘face’ of the law to see if, for example, it has been ‘gerrymandered’ to target particular individuals.”
States cannot pass laws requiring tax returns because The Ethics in Government Act (EIGA) preempts them from putting financial disclosure requirements on candidates for office and elected officials. The EIGA requires “extensive financial information such as the source, type, and amount of all income, gifts, interest in property, and liabilities to creditors.”
Trumps complaint also states that the passing of SB27 is a partisan effort to get the President’s Tax Returns. They are doing so with the hope they will find something to harm him politically. During the 2016 election, then-candidate Trump released almost 300 pages of documents in 2015 and 2016. These disclosures listed: assets and income; bank accounts and investments; financial transactions; liabilities; and the ownership structures of his companies. Then-candidate Trump did not release his federal tax returns due to the fact that he was under ongoing IRS audits and didn’t want to prejudice any rights he had in those proceedings.
In fact, the complaint states, Former California Governor Jerry Brown vetoed SB149, the previous bill to SB27, due to concerns of the bill’s legality. The co-authors of the bill were State Senators Mike McGuire and Scott Wiener. Both of these State Senators made it clear that the target of SB149 was President Trump. “Our bill requiring presidential candidates to disclose tax returns is on the Governor’s desk. No more Trump secrecy.” “If tax transparency, CA progressive values make Trump reelection harder, then I’m thrilled to be part of that effort.” Governor Brown vetoed the bill stating the following: “This bill is a response to President Trump’s refusal to release his returns during the last election. While I recognize the political attractiveness – even the merits- of getting President Trump’s tax returns, I worry about the political perils of individual states seeking to regulate presidential elections in this manner. … First, it may not be constitutional. Second, it sets a ‘slippery slope’ precedent. Today we require tax returns, but what would be next? Five years of health records? A certified birth certificate? High school report cards? And will these requirements vary depending on which political party is in power?”
California’s own Office of Legislate Counsel also advised that the bill would be unconstitutional.
SB27, as stated in the complaint, was submitted to Governor Newsom because he ran on forcing President Trump to submit tax returns in order to be on the ballot. The same authors of SB149 authored SB27. As co-author Senator Wiener explains it, “Now we have a different governor. We want to give him the opportunity to weigh in, and hopefully he will sign it.”
SB27, as it is written, will require presidential candidates to submit the previous five years of tax returns to appear on the primary elections ballot. The primary election is March 3, 2020. So by SB27, President Trump would need to submit the previous five years of tax returns by November 26, 2019. At that time, the Secretary of State for California would redact certain portions and then make available to the public. As noted in President Trump’s complaint, since this only applies to the primary elections and not to the general election, any independent candidate would not have to disclose their tax returns.
The President’s complaint also notes that under California’s Constitution, statues normally “go into effect on January 1 next following a 90-day period from the date of enactment of the statute.” There are limited exceptions to this rule that would allow the statute to go immediately into effect. One of these exceptions is “an urgency statute, which is a law ‘necessary for the immediate preservation of the public peace, health or safety.'”
The complaint further states that SB27 is targeting President Trump. In fact, Senator McGuire argued that “Presidential candidates need to put their own interests aside in the name of transparency. So far, our current president has done the opposite.” “California didn’t pick this fight. President Donald Trump has gone against 40 years of tradition… .”
This complaint seeks the following as a result of the lawsuit: “Permanent injunction prohibiting Defendants from implementing and enforcing SB27; temporary restraining order and preliminary injunction granting the relief specified above” while the law suit proceeds; and President Trump’s reasonable costs and expenses which includes attorney’s fees.
This story is ongoing. You can read the full complaint here.